The International Aviation Law Institute: 10 years and still soaring

It’s a little-known fact that DePaul offered some of the
first aviation law courses in the country, along with professors who
specialized in the field.

“I was wandering in the library here one day and I came
across a bound volume of the lectures of a DePaul professor in aviation law from
around 1940,” recalled International Aviation Law Institute (IALI) Director and Distinguished Research Professor of Law Brian
F. Havel. “It even preceded the Chicago Convention of 1944, which is the fundamental law of international aviation.”

In the 1920s, College of Law Professor John William Curran
taught law of agency, equity jurisdiction and trusts—and served as an early authority in aviation law. Georgetown Law Journal published Curran’s review of Carl Zollman’s CASES ON AIR LAW in March 1930. “Besides being the nucleus of a
course in ‘air law,’” Professor Curran penned in the review, “this volume
should prove useful to the practitioner.”

In 1932, DePaul added two summer aviation law courses, as
well as Zollman’s book, to its evening division curriculum (DePaulia archives
cite James Cherry as professor).

However, the fledgling field had its skeptics. By 1936, the
Association of American Law Schools no longer considered the subject important enough
to get its own entry. DePaul’s aviation curriculum quieted and, with the
exception of Professor Stanley B. Rosenfeld’s 1970 course, air law took to the
hangar.

“Aviation law had almost disappeared as a subject of study
in the 1970s and 1980s—and some of the 1990s,” explained Havel. “We were
surprised by that. We felt that we were stepping into a fine tradition here and
that DePaul had always had a place in the study and the scholarship of
international and domestic aviation
law. We thought it was appropriate to pick up the reins of their good work.”

Stuart Banner’s history of airspace, WHO OWNS THE SKY
(Harvard University Press 2008), discusses this initial rise, and subsequent
fall, of aviation law in the United States, citing DePaul’s curriculum in the company
of programs from Northwestern University School of Law and Vanderbilt
University Law School.

Early aviation law proponents saw the field as “marked by
the absence of ancient and inflexible methods and rules and impenetrable precedents,”
wrote Banner. “Not just a specialized kind of practice, but a new field of
law.”

This sentiment resonates with IALI Director Brian F. Havel. “I
felt that aviation law, like the industry itself, was exceptional,” he said. “The
philosophical approach of the subject is different from what we normally
encounter in international law. It has an unusual combination of international
and domestic law and, obviously, it has to manage highly complex issues like
the supply of air transport services across borders, which means that it deals
directly with issues of sovereignty and issues of collaboration between states
for a greater good.”

Visionary leadership

As the son of renowned Czech glass master Miroslav Havel,
who left for Ireland following World War II to become founding chief designer
for Waterford Crystal, Professor Havel’s calling in aviation law wasn’t writ
large. Havel won a debate tournament in his final year at Dublin’s University
College that launched him on a debate tour of U.S. universities.

During his visit to New York, he accepted an on-the-spot
offer for an internship at a Manhattan law firm. He never returned to work in
Ireland. Havel pursued two graduate law
degrees at Columbia University in New York, practiced transnational corporate
and antitrust litigation at New York firm Paul Weiss Rifkind Wharton &
Garrison and then came to DePaul.

Over the course of his tenure at IALI, Havel has been Keeley
Fellow at Wadham College, Oxford, as well as visiting professor at Oxford, at
Leiden University in the Netherlands and at his original alma mater, University
College Dublin. He was also named Fulbright Distinguished Visiting Professor of
Comparative Law and Legal Pluralism at McGill University Faculty of Law. He is a
board member of the European Air Law Association and vice chair of the Advisory
Board of the International Institute of Air and Space Law at Leiden.

“He has boundless energy and an ability to manage so many
diverse things at the same time—it’s amazing to watch,” said IALI Executive
Director Stephen Rudolph (JD ’97). “He is inspired… and he can inspire others
to do great things.”

Havel is a progressive thinker who is drawn to the imaginative
foundations of his field. He describes airports as transcendent entities and
his academic oeuvre includes interdisciplinary scholarship like “In Search of a
Theory of Public Memory: The State, the Individual, and Marcel Proust” in the
Indiana Law Journal (2005).

“He is sought after by the media because the depth of his
knowledge is such that he can speak on these issues extemporaneously,” said
Rudolph.

Havel is often solicited around the world for his skills as
a lecturer on civil aviation. Indeed, the seeds of the International Aviation
Law Institute trace back to one such conference. At the 2003 International Air
Transport Association conference in Singapore, Havel fell into discussion with
IALI Co-Director Michael S. Jacobs, DePaul professor and internationally
recognized expert in antitrust and competition law. The scholars agreed on the value
of aviation law study at DePaul and began laying the groundwork for the
institute.

A decade later, IALI serves as a beacon for aviation experts
and students in the Midwest—and worldwide. This visibility is evidenced by the
institute’s advisory board, which includes top-level authorities from around the
globe.

Great ground-floor strides

From its single seminar class in 2004, the institute has greatly
enriched its academic presence. IALI’s developments include new course
offerings, the only LLM concentration in International Aviation Law in the
United States, and a proposed Master of Jurisprudence program for
non-attorneys. In fact, DePaul is

only the third school in the world to offer a
graduate law degree in international aviation law, along with Leiden and
McGill.

IALI also owes its success to an amalgam of niche experts. John
Q. Mulligan is an adjunct professor and the institute’s third FedEx/United
Airlines Resident Research Fellow. In addition to teaching, Mulligan conducts
high-level research supporting other IALI faculty members.

Mike Jacobs brings highly specialized expertise to the institute.
“When competition law comes into play in Asia or the EU,” Rudolph stated,
“Jacobs is a highly sought after authority.” Jacobs continues to serve as a distinguished
speaker on IP/antitrust issues abroad, most recently in Singapore.

Current Interim Dean and IALI Co-Director Bruce Ottley joined
the institute in 2011, contributing instrumental knowledge in tort
litigation—in aviation, this extends to personal injury, wrongful death and
products liability— and civil procedure.

“My first day at DePaul as a student was Brian Havel’s first
day as a professor,” recalled Rudolph. At the College of Law, he served as lead
research assistant and project manager for Havel’s first book, IN SEARCH OF
OPEN SKIES: LAW AND POLICY FOR A NEW ERA IN INTERNATIONAL AVIATION (Kluwer Law
International 1997).

Following graduation, Rudolph worked as an editor specializing
in aviation law at legal publisher CCH Incorporated. He started an advisory
board and invited Professor Havel to chair and appoint the members. The cache
of talent included Kenneth P. Quinn (JD ‘85), former chief counsel of the
Federal Aviation Administration (FAA) and protégé of former U.S. Secretary of
Transportation Sam Skinner (JD ’66), as well as former Virginia governor and
noted transport advocate Gerald L. Baliles. In 2001, Baliles and Rudolph cofounded
the journal Issues in Aviation Law and Policy.

In 2007, with leadership changing at CCH, Rudolph arranged
to relocate the journal to DePaul’s aviation institute. “Six weeks later,” he
said, “I took an age-55 retirement from CCH and came to work here as executive director
of the institute.” He laughs, “And I’m still the journal’s managing editor.”

Broadening horizons

One of Havel's early initiatives, the "Conversations
with Aviation Leaders" oral history project brings an expanding sphere of
aviation scholars to DePaul. Picking up from the Airline Deregulation Act of
1978, the series explores what led to—and what has come out of—what Havel
refers to as a “social experiment” in deregulation. Initial interviewees
included the late Fred Kahn, the chairman of the Civil Aeronautics Board; and
former president and CEO of New York Air Mike Levine. More have followed.

The most recent conversation was with FedEx president and
founder Fred Smith. In collaboration with DePaul’s Chaddick Institute for Metropolitan
Development director, Professor Joseph P. Schwieterman, the institute also
produces the IALI/Chaddick Lunch Lecture series. Now in its fourth year, the
event features a guest specialist discussing airports, air traffic or
intermodal transportation, which are areas of concern for both institutes. It
regularly caps out at 100 guests.

But the heart of the institute is its vibrant academic program.

“One of the most exciting aspects of the aviation courses was
the fact that the institute attracted high profile guest speakers from the
aviation community,” said Thomas Wangard (JD ’13), an attorney focusing on
aviation accident litigation and FAA enforcement actions at Condon &
Forsyth in New York.

“Thanks to DePaul’s aviation institute, I was able to attend
an international aviation law conference in China, clerk with the FAA and work
for a firm that handled aviation cases.”

Last spring, IALI introduced a new course, International Aircraft
Financing Law, to more than a dozen students, many of whom were working
professionals.

“We’ve started attracting people who are already practicing
in the field, which is something we’d like to do more often,” said Rudolph. IALI
is in the process of introducing more academic initiatives, including an
aviation products liability course to be offered this spring.

Institute ideals

“One of the things that we’ve promoted at the institute is
the idea of a more liberal international economic environment for the aviation
industry,” Havel said.

Havel has delved intensely into the law of the European Union
and likes to make comparisons with the United States. “The EU has aviation as a
priority,” he explained. “A lot of the effects of regional economic integration
pursed by the EU have been demonstrated through the aviation industry.”

Under Havel’s wing, the institute was deeply involved in the
historic 2007 Open Skies air transport agreement with the European Union, a
negotiation between the United States and the EU that yielded what some have called
the world’s most liberal aviation agreement.

IALI held workshops and conferences to discuss the plan.
Chief U.S. negotiator John Byerly, former State Department deputy assistant
secretary for transportation affairs, has since joined the IALI board and
visits annually for lectures and gatherings as a scholar-in-residence.

“Another one of the issues I’ve taken up as part of the theme
for the institute is to investigate the relationship between government and the
airline industry on the level of what I call ‘smart regulation,’” Havel said.
His new book THE PRINCIPLES AND PRACTICE OF INTERNATIONAL LAW (Cambridge
University Press 2014) elaborates on this concept.

Regulations do have the capacity to change the nature of the
industry, Havel explains, if they are wise regulations—if they’re not simply
governmental impositions on the business models of the airlines, but actually
create the possibility of new business models. “It’s ironic that this industry
serves international trade and creates opportunities for international mergers
and acquisitions, but is everywhere restricted by an archaic regulatory system
that doesn’t allow foreign ownership of airlines,” he remarked.

“We’re looking at all of that, not necessarily because we’re
beating the drum for the airlines, but because we’re looking at what is
rational in terms of regulation. I think it’s a fascinating subject and I think
that the students welcome the opportunity to see how the world’s most visible
service industry is constructed and how it might be reconstructed in the
future.”

Taking off

“One of the things I like about our DePaul graduates is that
they’re always blessed with a sense of initiative,” Havel said. “Many of my
students have taken off around the world and have become proficient in the law,
the culture and the business practices of other countries. I can think of at
least a dozen students who have done this in the last few years.”

Alumnus Cade Miller (LLM ’13), now an attorney with the FAA,
is duly prepared to return the compliment. “Without a doubt, I would not be where
I am in my career had I not attended DePaul,” he said.

“The institute prepared me to succeed in many different
areas within the aviation industry. I use the knowledge I gained from the
Public International Aviation Law course almost every day at work. The courses
helped to create an understanding of how complex aviation policy and regulation
can be. Class discussions that we had on aviation policy allow me to participate
in many complex FAA discussions at work, including those on unmanned aircraft
systems.

“As part of the Field Placement Program, I was able to clerk
at the FAA Great Lakes Region. The connections and experience from this
clerkship were integral to my hiring at the FAA as an attorney.”

Similarly, the future for aviation law looks busy.

“On the regulatory side there is economic regulation and
antitrust regulation through various departments of government,” said Rudolph.
“You also have safety regulation, the FAA (which licenses and supervises
pilots, airlines and aircraft mechanics and repair stations), and you have—especially
since 9/11—the TSA and all of the security issues—those are regulatory parts of
the industry. The newest area, of course, is unmanned aircraft systems, known
to the public as ‘drones.’ There are attorneys needed in all of those areas.”

Most recently, Havel joined a high-level EU panel alongside
the U.S. Secretary of Homeland Security (his former Paul, Weiss colleague Jeh Johnson) and participated in an EU Passenger Rights Workshop in Belgium marking
the 10th anniversary of the European Union’s air passenger rights legislation.

Along the celebratory continuum, the institute recently commemorated
the 70th anniversary of the Convention on International Civil Aviation, the
Chicago Convention, at the Hilton Chicago hotel on Michigan Avenue, where it
was negotiated and signed in December 1944. One of the few originals of the
1944 Convention text, bequeathed to IALI by emeritus professor and founder of
the International Human Rights Institute, M. Cherif Bassiouni, was displayed prominently
at the commemoration.

On the cusp of this momentous milestone, and with many more
on the horizon, DePaul’s IALI will soon celebrate its own 10-year anniversary
in friendly skies.​ ​​​​